Preliminary Proof - Prescription
The defender is sued as representing the Ministry of Defence. The pursuer raised two actions against the defender. The proof in the conjoined actions is set down for 30 January 2007. A preliminary proof was held on the question of time-bar in relation to one of the actions only. The action was time-barred in terms of section 17(2) of the Prescription and Limitation (Scotland) Act 1973. On behalf of the pursuer it was submitted that the court should exercise its discretion under section 19(A) to ...
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The court's general case management power to extend time and to act on its own initiative was not cut down by the CPR r.3.8. The court was not powerless to extend time unless or until an application for relief from a sanction was made by the party in default.
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Under CPR Part 35 there were circumstances in which a party dissatisfied with an amended opinion from their expert after the experts' discussion could obtain permission to rely on evidence adduced from an additional expert.
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For the purposes of the expiry of the limitation period under the Limitation Act 1980 s.11(3) a claim was "brought" when a claimant's request for the issue of a claim form was delivered to the correct court office during its opening hours.
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There was no principle or practice that the court could not summarily dismiss a claim where there was untested paper evidence supporting it.
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In an application for the substitution of a new party under the Limitation Act 1980, s.35(6)(a) of the Act could not be interpreted to mean that a party's name was not given "in mistake" where a claimant, even though under a mistake at the time when the action was commenced, was not under any mistake about the identity of the party against whom it was intending to proceed at the time when the limitation period expired.
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It was open to the parties to agree under CPR r.2.11 to extend time for the service of a claim form under CPR r.7.5. The written agreement of the parties under r.2.11 of the Rules did not have to be in a single document and could be constituted by an exchange of letters.
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An order imposing a two-year stay on all proceedings between the parties relating to matters raised in an action between them was not a civil restraint order. The court had exercised its case management powers under CPR r.3.1(2) to achieve the overriding objective.
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The Court of Appeal had a residual jurisdiction to enquire into unfairness in the process of a refusal of permission to appeal under the Arbitration Act 1996 s.69(8) but there was no such unfairness in the instant case.
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These were reclaiming motions by the defenders against interlocutors of Lord Bracadale dated 14 January 2005 in two actions of damages. In both actions the Lord Ordinary repelled the defenders' plea to relevancy and appointed proof before answer.
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